EU Advocate General: Islamic headscarf ban at work may be lawful

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A ban on wearing Islamic headscarves at work may be permissible under EU law if the ban is based on a general company rule which prohibits political, philosophical and religious symbols from being worn visibly in the workplace, the EU’s top legal adviser has said.

Such a ban may be justified if it enables the employer to pursue the legitimate policy of ensuring religious and ideological neutrality, the Advocate General at the Court of Justice of the EU, Juliane Kokott, said.

Kokott’s opinion was requested in connection with a case of a Muslim woman in Belgium who was dismissed from a company after insisting that she wear an Islamic headscarf at work.

Samira Achbita was employed as a receptionist for the Belgian company G4S Secure Solutions, which is an undertaking that provides security and guarding services as well as reception services.

After having worked for three years for the company she insisted that she should be allowed to go to work in future wearing an Islamic headscarf. She was dismissed as a result, since G4S prohibits the wearing of any visible religious, political and philosophical symbols.

Supported by the Belgian Centre for Equal Opportunities and Combating Racism, she brought an action before the Belgian courts seeking damages from G4S. Her action was unsuccessful before the first two tiers of courts.

The Belgian Court of Cassation, before which the case is now pending, has made a request to the Court of Justice for a preliminary ruling seeking clarification of the prohibition under EU law of discrimination on the grounds of religion or belief.

In a statement on May 31, the Advocate General said that there is no direct discrimination on the ground of religion where an employee of Muslim faith is banned from wearing an Islamic headscarf in the workplace, provided that that ban is founded on a general company rule prohibiting visible political, philosophical and religious symbols in the workplace and not on stereotypes or prejudices against one or more particular religions or against religious beliefs in general.

“If that is the case, there is no less favourable treatment based on religion,” Kokott held, according to a media statement by the court.

The ban may constitute indirect discrimination based on religion, but may, however, be justified in order to enforce a legitimate policy of religious and ideological neutrality pursued by the employer in the company concerned, in so far as the principle of proportionality is observed in that regard.

“In a case such as the one at hand, the proportionality test is a delicate matter in the context of which the Court of Justice should grant the national authorities, in particular the national courts, a measure of discretion which they may exercise in strict accordance with EU rules,” the statement said.

“Accordingly, it is ultimately for the Belgian Kassationshof to strike a fair balance in the present case between the conflicting interests, taking into account all the relevant circumstances of the case, in particular the size and conspicuousness of the religious symbol, the nature of Ms Achbita’s activity and the context in which she must perform her activity, as well as the national identity of Belgium.”

Kokott held that there can be no doubt, in principle, that the ban at issue in this case is appropriate for achieving the legitimate objective pursued by G4S of ensuring religious and ideological neutrality.

“The ban is necessary for the purposes of implementing that company policy,” the statement said.

“Less intrusive but equally suitable alternatives for achieving the objective pursued have not been identified during the proceedings before the Court.”

Kokott said that the ban at issue in the case “does not unduly prejudice the legitimate interests of the female employees concerned and must therefore be regarded as proportionate”.

For many people religion is indeed an important part of their identity and the freedom of religion is one of the cornerstones of a democratic society, the statement noted.

“While an employee cannot ‘leave’ his sex, skin colour, ethnicity, sexual orientation, age or disability ‘at the door’ upon entering his employer’s premises, he may be expected to moderate the exercise of his religion in the workplace, be this in relation to religious practices, religiously motivated behaviour or (as in the present case) his clothing.

“The measure of restraint which an employee can be required to exercise depends on a comprehensive assessment of all the relevant circumstances of the case in question,” the statement said.

Procedurally, the Advocate General’s opinion is not binding on the Court of Justice.

A reference for a preliminary ruling allows the courts and tribunals of EU countries, in disputes which have been brought before them, to refer questions to the Court of Justice about the interpretation of European Union law or the validity of a European Union act.

The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to deal with the case in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.

(Archive photo, of women in a street in Iran: Gabriel White)

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